(No. 14.) Demurrer to complaint, that it contains no cause of action, specifying the ground of objection taken.1 SUPREME COURT. Sophia Yerton, administratrix, &c., agt. Ebenezer Wiswall and John P. Wiswall, executors, &c., of Ebenezer Wiswall, deceased. The defendants demur to the complaint of the plaintiff in this action, and for causes of demurrer specify the following: Appeals (Prindle v. Caruthers, 1 Smith, 15 N. Y. Rep., 425), in which, on demurrer to a complaint on a contract in writing, "for value received," but omitting to aver any consideration of the contract, and stating that the contract became the property of the plaintiff by purchase, without stating when, from whom or upon what consideration, it was held that these defects are not of such a substantial nature as to be available under the ground of demurrer that the complaint does not state facts sufficient to constitute a cause of action, but that the remedy is by motion to make the faulty pleading more definite under sec. 160 of the Code. That proceeding has taken the place of demurrers for want of form. And recently by the New-York Superior Court, at General Term (Graham v. Camman, 5 Duer, 697), it was held that such a demurrer applies only to such defects as would render the count bad on general demurrer at law or for want of equity in Chancery. That is, that a complaint, to be overthrown by such a demurrer, must present defects so substantial in their nature and so fatal in their character as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever. (See also, Richards v Edick, 17 Barb., 260.) 1 To Complaint No. 15, Part III., ante, p. 377, and see note on same page. The demurrer was overruled. (See note, ante, pp. 377, 378.) That said complaint does not contain facts sufficient to constitute a cause of action, in that: First. The facts set forth are insufficient to constitute a cause of action against the defendant's testator in his lifetime. Second. The cause of action, if any is set forth in said complaint, died with said Wiswall, and did not continue and cannot be maintained against the defendants, his executors. S. & V. S., Defendants' Attorneys. (No. 15.) Special demurrer to complaint, specifying various grounds of objection belonging to different classes.1 SUPREME COURT-ULSTER COUNTY. Edward Murray agt. Marius Schoonmaker, Joseph 8. Smith and Charles Dubois, impleaded with Whiting The defendants, Schoonmaker, Smith and Dubois, demur to the plaintiff's complaint in this action, upon the following grounds, viz: First. Several causes of action have been improperly united. Second. A cause of action against Whiting Weeks is improperly united with one against these defendants. To Complaint No. 90, Part III., ante, p. 420. Demurrer overruled at Special and General Term. (See note, ante, p. 422.) Third. The instruments set forth in the complaint are both specialties; they are different instruments; each expresses an obligation different from the other; they are not both signed by the same persons. Fourth. The uniting such causes of action in this action, the liabilities of the defendants arising upon separate instruments, is improper and is multifariousness. Fifth. There is a defect of parties defendants; a misjoinder of defendants; these defendants are improperly joined with Weeks; Weeks is liable on one instrument, and the other defendants on the other. Sixth. Such causes of action do not belong to the same class. Seventh. Both causes of action do not affect all the parties to this action; they do not affect the same persons; all the defendants are not joint covenantors, nor are they all jointly interested; the defendant Weeks is liable on one instrument, and the other defendants on the other. Eighth. The several causes of action are not separately stated; they are blended together in their statement, as are also the statement of their breaches, so as not to be distinguishable; they are improperly united; the breaches are not distinguishable. SCHOONMAKER & KENYON, Attorneys for Schoonmaker, Smith and Dubois. 1 It has been a disputed question whether a demurrer would lie for this cause. (See Pleadings, 344, et seq.; ib., 683, 684, and cases there cited.) The better opinion now seems to be, that a demurrer will not be entertained for such a cause, but that the defect should be corrected on motion. (See, in addition to the cases cited in Pleadings, 684, Dorman v. Kellam, 14 How., 184; Harsen v. Bayaud, 5 Duer, 656; Cheesebrough v. N. Y. and Erie Railroad Co., 13 How., 558; Woodbury v. Sackrider, 2 Abbott, 402.) (No. 16.) Special demurrer to complaint in common law action, specifying wherein the facts set forth are insufficient to constitute a cause of action.1 SUPREME COURT. John S. Gould The Hudson River Railroad Company. The defendants demur to the plaintiff's complaint, and allege the following as the grounds or causes of demurrer : First. That it appears by the complaint that the Hudson river, wherein the defendants have raised and constructed their said embankment and railroad track, is a public, navigable stream, wherein the tide ebbs and flows, and, as such, belongs to the people of the State of New-York, and no part belongs to the plaintiff; and that said embankment and railroad track being raised and constructed wholly below the ordinary high water mark of said river, no action can be maintained by the plaintiff against the defendants. Second. That it appears by the said complaint that the said embankment and railroad track was raised and constructed by the defendants, under and by the authority and permission of the people of the State of New-York, derived from and given by two acts of the legislature of said state, referred to in said complaint, which said two acts, and the authority and permission derived therefrom, gave to the defendants the right to take, use and occupy the land under the waters of the Hudson river. 1 To Complaint No. 83, Part III., ante, p. 516. The demurrer was held valid by the Court of Appeals. (Gould v. The Hudson River Railroad Company, 2 Selden, 522.) That such right, so derived, is paramount and superior to any possessed by the plaintiff, either as riparian owner or as a citizen. That every right of the riparian owner or the citizen to the use of a navigable tide water river, for navigation, fishing, ferrying or otherwise, is subordinate and subservient to the public use of such river. That such rights of the riparian owner or the citizen reside in him only during the pleasure of the sovereign will, and can, at any time, be taken from him by the exercise of that will. And that the people, being the proprietors of the river and the river's bed, have, in their sovereign capacity, through their legislature, granted to the defendants the right to construct their said railroad in the Hudson river; which grant, though it deprive the riparian owner and the citizen of all use, benefit and advantage of the river, for navigation or otherwise, they, the people, as the sovereign power, could lawfully and constitutionally make, it being public property, thus devoted to public use. Third. That the said complaint does not state facts sufficient to constitute a cause of action. THOMAS M. NORTH, Defendants' Attorney. |